United States District Court, D. Minnesota
C. Stratton, Jill R. Gaulding, Christy L. Hall, Gender
Justice, St. Paul, Minnesota, Jean M. Boler, Schaefer
Halleen, LLC, Minneapolis, Minnesota, for Plaintiff.
Britton D. Weimer, Weimer & Weeding PLLC, Bloomington,
Minnesota, for Defendant Nasseff Mechanical Contractors Inc.
Brendan D. Cummins, Cummins & Cummins, LLP, Minneapolis,
Minnesota, for Defendant Local Union #417.
MEMORANDUM OPINION AND ORDER
RICHARD H. KYLE United States District Judge
Kimberly Brinkman has worked as a sprinkler fitter in the
construction industry for nearly twenty years. In this
action, she alleges that her union, Defendant Local Union
#417 (the “Union”), and a construction company
for which she performed union work, Defendant Nasseff
Mechanical Contractors Inc. (“Nasseff”),
discriminated against her on account of her gender and
retaliated against her when she complained, in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et
seq., and the Minnesota Human Rights Act
(“MHRA), Minn. Stat. § 363A.01 et seq.
Presently before the Court are Defendants' Motions to
Dismiss. For the reasons that follow, the Motions will be
granted in part, the Title VII claims dismissed with
prejudice, and the MHRA claims dismissed without prejudice.
facts relevant to deciding the instant Motions are as
follows. Brinkman has been a member of the Union since 1999
or 2000. (Am. Compl. ¶ 33.) Pursuant to a
collective-bargaining agreement, the Union supplies labor to
more than twenty fire-protection companies in the
metropolitan Minneapolis area for commercial sprinkler work.
(Id. ¶ 23.) Brinkman is one of only two female
“journeyman” members of the Union. (Id.
to the Amended Complaint, Brinkman began experiencing
harassment by male coworkers from nearly the beginning of her
work in the sprinkler-fitting industry. (Id. ¶
34.) She alleges that she has suffered various forms of
discriminatory conduct, including not being permitted to work
on jobs from start to finish, experiencing significant
periods during which she was offered no assignments, and
other mistreatment she attributes to her gender. (See
generally id. ¶¶ 32-61.) With respect to
Nasseff, she alleges that she was initially passed over for
work on a Nasseff project in 2013, but after raising the
issue, the company agreed to hire her. Yet, she alleges the
company did not support her like her male co-workers and,
eventually, laid her off while hiring male replacements.
(See id. ¶¶ 62-84.) Brinkman sought to
challenge the layoff through the Union, but it allegedly
refused to bring a grievance on her behalf. (Id.
January 1, 2014, Brinkman filed two charges of discrimination
with the Minnesota Department of Human Rights
(“DHR”) against Nasseff and the Union,
respectively. (Id. ¶¶ 12-13.) The charges
were cross-filed with the Equal Employment Opportunity
Commission (“EEOC”). (Id. ¶ 14.) In
September 2014, the DHR notified Brinkman that her charges
were being referred to the EEOC for further processing. Then,
on July 18, 2016, Brinkman received right-to-sue letters from
the EEOC with respect to the charges. (Id.
¶¶ 15-16.) Consistent with Title VII, see
42 U.S.C. § 2000e-5(f)(1), the letters made clear that
any lawsuit based on the allegations in the charges had to be
filed within 90 days of receipt. (See Third Cummins
Aff. Ex. 1.)
days from July 18, 2016, was Sunday, October 16, 2016. On
that day, one of Brinkman's attorneys, Lisa Stratton,
Esq., attempted to commence this action by filing the
Complaint and related documents via the Court's
Electronic Case Filing (ECF) system. (Second Stratton Decl.
¶ 12.) At the time, the Court had recently transitioned
from paper filing to electronic filing for commencing new
cases; Stratton, who had not been actively litigating cases
for several years and had not previously commenced an action
through ECF, attempted to familiarize herself with the
Court's new procedures, which are available on the
Court's website. (Id. ¶¶
10-11.) According to Stratton, it appeared that
she had done everything correctly, and she emailed Brinkman
and her co-counsel, Christy Hall, Esq., later that evening to
advise that she had filed the Complaint. (Id.
¶¶ 12, 15.) Yet, Stratton did not receive an NEF
indicating that the Complaint had been filed, nor did Hall,
whose ECF account Stratton had used because of concern that
her own account would not work properly. (Id.
¶¶ 12, 14, 17.)
Monday October 17, Stratton contacted Hall and asked her to
verify that the Complaint had been properly filed and the
action started. (Id. ¶ 16.) Hall checked the
“new cases” list on the Court's website but
did not see Brinkman's action. (Hall Decl. ¶ 10.)
Because there were many cases on the list, Hall believed the
Clerk's office simply “hadn't gotten to
docketing [the] complaint yet.” (Id.) But when
Hall did not see the case on the list by early afternoon, she
called the Clerk's office and spoke to an unknown male
employee. (Id. ¶¶ 12-13.) Though she
cannot recall verbatim what was said, the “gist of the
conversation” was that Hall asked whether
“everything had been correctly filed, ” and the
employee responded that it had been and that the Clerk's
office had received the Complaint, but it still needed to be
docketed. (Id. ¶¶ 13-14.) Based on this
conversation, Hall perceived no reason for concern and
concluded “the reason we hadn't seen anything via
ECF or on the New Cases Report was that the [C]lerk's
office still needed to docket it.” (Id. ¶
Wednesday October 19, neither Stratton nor Hall had received
an NEF indicating the Complaint had been filed. They
exchanged emails about the “puzzling” delay but
did not attempt to contact the Clerk's office.
(Id. ¶ 18; Second Stratton Decl. ¶¶
20-21.) But with still no NEF received by Friday October 21,
Stratton called the Court's ECF help desk and was advised
that although a case had been “opened” on Sunday
October 16, the Complaint had not been electronically
uploaded and filed at that time, and the information
previously provided by the male employee had been incorrect.
(Second Stratton Decl. ¶ 22.) After discussing the
matter, Stratton and Hall then decided to immediately re-file
the Complaint. (Id. ¶¶ 22-23.)
Accordingly, the docket in this matter reflects that the
Complaint was not filed until Friday, October 21, 2016.
Union and Nasseff responded to the Complaint by moving to
dismiss. Brinkman then amended her Complaint,  and Defendants
have moved once again to dismiss, arguing inter alia
that her Title VII claims are untimely because she filed this
action more than 90 days after receiving the EEOC's
right-to-sue letters. The Motions have been fully briefed and
are ripe for disposition.
procedural posture of this case requires a brief digression
regarding the appropriate standard of review. As noted above,
Defendants have moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing (among other things) that
Brinkman's Title VII claims - the only claims addressed
herein - are untimely based on the statute's 90-day
limitations period. Yet, the statute of limitations
“rarely provides a basis for Rule 12(b)(6) dismissal,
” Haile v. HMS Host, Civ. No. 14-379, 2014 WL
2480191, at *1 n.3 (D. Minn. June 3, 2014) (Kyle, J.),
because it is an affirmative defense that the defendant must
plead and prove, see Fed.R.Civ.P. 8(c)(1);
Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th ...